United States District Court, D. Oregon
ROBERT A. LUND, Plaintiff,
CHASE BANK, Defendant.
Robert A. Lund, Albany, Oregon, Pro se plaintiff.
Whitney S. Button, Pilar C. French, Lane Powell, PC, Portland, Oregon, Attorneys for defendant.
OPINION AND ORDER
ANN AIKEN, District Judge.
This is yet another in a long line of lawsuits surrounding plaintiff Robert Lund's federal income tax deficiencies. Defendant JPMorgan Chase Bank, N.A.,  moves to dismiss plaintiff's complaint. In addition, defendant seeks judicial notice of certain publicly filed documents. For the reasons set forth below, defendant's motions are granted and this case dismissed.
This matter arises out of the United State's investigation into plaintiff's income tax liability for 2001 through 2008, years in which he has not filed federal income tax returns. Pursuant to this investigation, on June 17, 2009, Revenue Agent Rae Cook served defendant with an IRS summons ("Summons")to produce plaintiff's financial records and appear on July 17, 2009. On July 6, 2009, plaintiff initiated a lawsuit in this Court and moved to quash the Summons. See Lund v. United States ("Lund I"), 6:09-cv-06192 (doc. 2). On December 17, 2009, the IRS sought dismissal of plaintiff's lawsuit on the basis that the underlying Summons complied with the factors set forth in United States v. Powell , 379 U.S. 48 (1964). On February 11, 2009, before the Court ruled on the IRS's motion, plaintiff voluntarily withdrew his cause of action against the United States. Accordingly, the Court entered judgement dismissing Lund I.
At some unspecified time thereafter, defendant furnished documents pursuant to the Summons. On February 19, 2014, plaintiff commenced a lawsuit in Linn County Circuit Court, alleging violations of the Oregon constitution, breach of contract, and deprivation of his Fourth and Fifth Amendment rights, and requesting $3, 000, 000 in damages.
On March 19, 2014, defendant removed plaintiff's complaint to this Court on the basis of federal question and diversity jurisdiction. On May 8, 2014, this Court denied plaintiff's motion for remand.
On May 19, 2014, defendant moved to dismiss plaintiff's complaint pursuant to Fed.R.Civ.P. 12 (b) (6). On June 16, 2014, plaintiff filed an "objection to the Request for Judicial Notice of Documents, " in which he raises substantive arguments and again requests that the Court remand this case back to state court.
STANDARDS OF REVIEW
Where the plaintiff "fails to state a claim upon which relief can be granted, " the court must dismiss the action. Fed.R.Civ.P. 12(b) (6). To survive a motion to dismiss, the complaint must allege "enough facts to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly , 550 U.S. 544, 570 (2007). For purposes of a motion to dismiss, the complaint is liberally construed in favor of the plaintiff and its allegations are taken as true. Rosen v. Walters , 719 F.2d 1422, 1424 (9th Cir. 1983). Bare assertions, however, that amount to nothing more than a "formulaic recitation of the elements" of a claim "are conclusory and not entitled to be assumed true." Ashcroft v. Iqbal , 556 U.S. 662, 681 (2009). Rather, to state a plausible claim for relief, the complaint "must contain sufficient allegations of underlying facts" to support its legal conclusions. Starr v. Baca , 652 F.3d 1202, 1216 (9th Cir. 2011), cert. denied, 132 S.Ct. 2101 (2012).
Defendant argues that dismissal is appropriate because plaintiff previously filed, and then voluntarily dismissed, a motion to quash the Summons, such that judicial estoppel applies. In the alternative, defendant asserts that plaintiff's complaint fails to state a claim upon which relief can be granted. According to plaintiff, dismissal is not warranted because the motion to quash he filed in Lund I rendered the underlying Summons invalid and defendant ...